June 7, 2012 | 9:30 AM

In Pennsylvania, hydraulic fracturing critics call it the doctor “gag rule.” But three other states have passed nearly identical provisions in recent months. And in two of them, the language passed without a blip of controversy.

Pennsylvania’s new state law, Act 13, requires drilling companies to tell any doctor who asks what chemicals they are pumping underground — but also binds physicians to keep that information confidential.

The Pennsylvania law is based largely on regulations passed in Colorado, whose hydraulic fracturing rules also served as a model for new laws in Texas and Ohio. While the four states’ language about doctors is similar, public reaction has been varied.

In Pennsylvania and Ohio, medical professionals have voiced concern the restrictions would interfere with their ability to treat patients and share information with peers. But the Texas Medical Association endorsed the Lone Star State’s new rules. And of the hundreds of public comments filed in response to Colorado’s regulations — nearly all of them criticizing the rule as weak — just six people mentioned the doctor nondisclosure language. Not a single major Colorado or Texas newspaper mentioned the doctor language in its coverage of the states’ new disclosure standards.

The wide range of reactions underscores how differently the politics of regulating fracking is playing out from state to state. What was praised as a reasonable compromise in Colorado has been demonized as an industry giveaway in Pennsylvania.

Environmentalists in Pennsylvania and other states want drillers to publicly disclose every single chemical they use during hydraulic fracturing. Pennsylvania, Colorado, Texas and Ohio all said no to those demands, allowing drillers to keep the chemicals they deem “trade secrets” out of public filings.

But the states did force disclosure to doctors on the grounds that physicians would need this information in order to treat a person who may have been exposed to harmful chemicals. In exchange for the information, doctors are forced to sign confidentiality agreements with the drilling companies.

A Big Controversy Over A Small Amount of Fluid

When discussing trade secrets and hydraulic fracturing, it’s important to keep this in mind: About 99 percent of fracking fluid is made up of water and sand. In the growing number of states with disclosure regulations and laws, companies are required to disclose the majority of that remaining one percent.

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Every state with a fracking disclosure provision on the books allows companies to keep proprietary chemical combinations out of the public record. That’s because each natural gas driller uses a different mixture of chemicals to ease gas out of shale formations. “[Trade secret protections are in place] for the very reason that other industries have it,” says Marcellus Shale Coalition spokesman Pat Creighton. “So that when you have an additive that you invest tens of millions of dollars — in some cases billions — developing, that’s your right.”

The four states’ medical provisions are included to make sure doctors can gain access to information about those proprietary compounds, if they’re treating a person who has been injured or sickened by exposure to chemicals stored on a drilling site. The language barring doctors from making the information public, borrowed from federal Occupational Safety and Health Administration rules, is meant to protect drillers from the possibility of a doctor leaking their proprietary information to their competitors or perhaps publishing it on a website.

In Pennsylvania, several members of the medical community have voiced concerns about the nondisclosure language. In part, that’s because the law is somewhat vague in its instructions to doctors. It says only that the proprietary information “may not be used for pur­poses other than the health needs asserted and that the health pro­fes­sional shall main­tain that infor­ma­tion as con­fi­den­tial.”

“They haven’t defined the boundaries of disclosure, so doctors are properly nervous,” Barry Furrow, the director of Drexel University’s Health Law Program, told StateImpact Pennsylvania. “What can they disclose to the state? What can they disclose to the community?”

Governor Corbett’s energy executive, Patrick Henderson, played a key role in writing the legislation, and vehemently disagrees with that interpretation. During a May panel discussion on the new law, Henderson said, “This statute provides unfettered access for …medical professionals to access the information they need, to collaborate with their colleagues, to share that information with their patients, and to ultimately make the best decisions for their patients.”

A Standard Form For Colorado, But Not Pennsylvania

If doctors are confused about how the confidentiality requirements will work, one reason is because Pennsylvania’s law leaves it to the drilling companies to draft the form they’ll require doctors to sign. Act 13 doesn’t spell out how narrow or broad the nondisclosure form should be, or detail the consequences a doctor would face if he or she makes a company’s proprietary chemicals public. Critics worry every driller could come up with different language and demands.

Scott Detrow / StateImpact Pennsylvania

A truck delivers fracking fluid to a Susquehanna County recycling center

Colorado solved that problem by providing a standard form for all companies to use. It’s called “Form 35,” and was approved by the state’s Oil and Gas Conservation Commission earlier this year. The two-page document states proprietary chemicals will be “labeled ‘CONFIDENTIAL’ or ‘TRADE SECRET’ or ‘PROPRIETARY’ or bear a similar legend.”

In the form, the “recipient agrees to hold confidential all Trade Secret Information provided by the Custodian [the company] and not to make use of it for purposes other than medical diagnosis or treatment as specified in the statement of need.” Read the form here.

Pennsylvania’s law is modeled on Colorado’s. So why didn’t Pennsylvania include a standard form? Henderson declined to comment. Drew Crompton, chief of staff to President Pro Tem Joe Scarnati — who also drafted large swaths of the law — told StateImpact Pennsylvania that legislators expected the Department of Environmental Protection and the Department of Health to manage the issue, and suggested that one of the two agencies may develop a standard form in the future.

In an email, Department of Health spokeswoman Christine Conkwright writes the agency is “in the process of gathering feedback from physicians on a variety of needs related to Marcellus Shale gas drilling and patient treatment.” If a standard form is needed, “[the department] will assist in developing one.”

Texas leaves the issue of disclosure forms up to each company; Ohio doesn’t require a form at all. The Ohio law, drafted after Pennsylvania officials began taking heat from the medical community, includes the following clarification: “nothing in…this section precludes a medical professional from making any report required by law or professional ethical standards.” Ohio doctors are required to “keep the information confidential,” but they aren’t required to sign individual nondisclosure forms.

That didn’t stop the Ohio State Medical Association from speaking out against the law: “The OSMA strongly believes that physicians should have access to all of the relevant information needed to deliver high-quality medical care to their patients,” OSMA representative Tim Maglione wrote in a public letter. ”This information also needs to be shared with other medical providers who are contributing to caring for a patient.”

Despite all the concerns that have been raised over the issue, a specific case where a doctor has been asked to sign a nondisclosure form has yet to surface in any of the four states. When that does happen, drillers, environmentalists, regulators and doctors will all be watching to see how an issue that up to now has been largely hypothetical plays out in practice.

Comments

Runwolf21

“When dis­cussing trade secrets and hydraulic frac­tur­ing, it’s
impor­tant to keep this in mind: About 99 per­cent of frack­ing fluid is
made up of water and sand”. Stating this fact irresponsibly misrepresents the dangers posed by chemicals in water. For instance, 100 parts per million (0.001%) of arsenic in food or water can be fatal. Would you like a glass of water? It is 99.999% water. Sure the other 0.001% is arsenic and you will die. Water is the universal solvent. Its not the percent water, but what the water is carrying that is important.

drklassen

That little bit jumped right out at me, too. But then, I’ve fielded so many “How can CO2 be a problem when it is less than 1% of the air?!”

http://profile.yahoo.com/EEXJENJKX3SCI6W7QV4B3PK4KA Bushfan

Considering companies are now pumping food grade materials to keep politicians, lawyers and doctors happy, this would appear to be among the most absurd issues anyone could ever waste their time fretting about. Bad information and bad politics equals fear and misunderstanding.

HarryW

Your name really tells me all I need to know: however, are you 100% SURE all companies are doing this, or are you just another sycophant of the oil-gopolies? Given that I depend on an aquifer, and the oil companies’ long record of lying out their butts, I’m not willing to stake my only source of drinking water on their good-nature.

http://profile.yahoo.com/X7XFRANLVBHPYI3TG5LHGGOWAE Scruffy

Not just oil companies but businesses in general. It’s cheaper to pay out for a few deaths or injuries than practice safety consistently. I see it at work frequently. Managers trying to squeeze more efficiency out by telling employees to ignore safety rules to speed things up.

Deb Sil82

what can we expect in a country where medicine is a profit center?

I’m not an activist; people I know that are, say, “get involved”, “come to a rally”. It seems like 99% could beat 1% hands down. I didn’t see “Hunger Games” but I heard that line – you have to give people hope, but only so much.

So I guess I’ll keep scrolling

Mjcscruffy

Dear Scruffy,
It’s me again. The other scruffy.
Have you noticed that in OHIO state lands are being leased for oil exploration? I thought they were supposed to be held in sacred trust for future generations. What will happen to the wildlife (flora and fauna)? The recently victorious WI Gov. Walker has apparently hired someone from TX to manage a department that oversees hunting. This person apparently favors PRIVATE hunting rather than PUBLIC hunting. So I laugh at my neighbors who vote republican because Obama or any other Democrate will “take their guns away”. I say to them, “You go ahead and keep your guns.” “Then try to figure out where you are going to use them.” Our farm is posted.
Next year, on April 22 (Earth Day), perhaps we should just have a funeral service for The Late Great Planet Earth.

Dillard Jenkins

Apparently Bushfan has already drank some fracturing juice and it’s destroyed his brain cells, which were already weak.

The general population is ignorant by choice. We have become intellectually lazy and are quite happy to be spoon fed information that is agenda or emotion driven than factual. News is more entertainment than informative, so we sit on our couch, gobbling Cheesies and washing it down with a soda and taking everything that is said as the TRUTH. The one thing I thank Ronald Regan for is his quip “trust but verify”……we no longer have the intellectual muscle to verify.

Mjcscruffy

Dear Dennis,
You are so right about being unable to live without water. You can live for quite a while with bad water. You are just likely to become very ill and have a shortened life of significantly lower quality and have little financial resources to pass on to your family. I had just reached your conclusion about the general population after watching in shock and dismay the results of the WI recall election. These people are fools. In the 2010 campaign season, some Republican or Tea Party candidates said that their goal would be to reduce or eliminate the minimum wage. So…..first they came for the Public Employee Unions, then they came for the Private Employee Unions, and now they come for the rest of us earning minimum wage. And, they will have also eliminated any “social networks” like Medicaid that help people in need.

http://www.facebook.com/tim.stewart.1426 Tim Stewart

You ALL Frack me up! “Corporations are evil and it’s Bush’s fault”. That’s the arguement? First, learn everything there is to know about fracking before you post and make an idiot of yourself. Then, start worrying about this country going bankrupt with wasted and misussed tax dollars from the people who actually earn enough money to pay taxes. Our debt has a massively larger negative affect on peoples lives and their health than fracking ever could yet this is what drives you to post a comment? Sooo typical!!! LMAO

HarryW

“Our debt has a massively larger negative affect on peoples lives and their health than fracking ever could…”

Really? Please post the sources of where you’ve …”learn[ed] everything there is to know about fracking,” then your bona fides on higher economic theory. I can’t WAIT.

Signed, a Professional Geologist….who lives RIGHT near where well water now catches on fire because of fracking.

drklassen

Your corporation may have the right to its trade secret chemistry; it does NOT have a right to pump ANYTHING into the ground that connects to aquifers held by the commons.

http://www.facebook.com/jerry.steward.9 Jerry Steward

Unfortunately, in many states they do. They’ll contimue to lobby and bribe their way into any state they can, until the EPA finally catches up with them, unless they infiltrate them too. Either way, it will only be a matter of time before mass sicknesses come to light and bring down the whole industry, but that will be a decade away, and they happy to make their profits right up until then.

http://twitter.com/iveyr Bob Ivey

This is nonsense on two fronts. 1) If chemicals used in the fracking process are causing human health issues then they are dangerous and need to be regulated in order to protect the public. Remember asbestos? 2) It would seem that the chemical(s) in question could be determined by backtracking from the condition of the patients.

Trenalg

Up next, the privatization of water supplies. It’s already in effect in many places, and spreading.

“So that when you have an addi­tive that you invest tens of mil­lions of
dol­lars — in some cases bil­lions — devel­op­ing, that’s your right.”……and to hell with those they make ill or kill! They pray at the altar of the almighty Dollar!

Deb Sil82

Yes, the altar of the dollar, the almighty dollar; Seems like more folks are worshiping at that altar every day. What really infuriates me is that people have already gotten sick, very sick, from fracking (see “Gasland”) so why is fracking still being debated? Because we worship at the altar of the dollar & always will. Human beings, I fear, are inately selfish & this will be our undoing. And, unfortunately, even though we live in a democracy (vote the bums out!) our government likes to play divide & conquer & sometimes it seems as if Americans enjoy being pawns. Why else would we vote against our interests?

Something else to consider is the sudden occurrence of EARTHQUAKES in Ohio that has been linked to fracking. I think they are due to the INJECTION WELLS used to “discard” toxic waste from fracking. From the perspective of Google Maps, the world looks too vast to be impacted much by our puny moving of materials around on the CRUST. However, I suddenly realized that fracking takes drinkable water from aquifers near the surface, poisons that water, then buries it DEEP INSIDE THE EARTH below the traditional aquifers from which we get our water. In order to work, these wells need to be isolated by a horizontal impervious rock formation between the toxic water and the clean water. Net result is that we are transferring water OUT OF THE WATER CYCLE. Does nature create enough new water to replace that which fracking is removing from the system? Obviously, the earth is being impacted enough to generate EARTHQUAKES. Happening in Colorado and in Montana too. People really need to wake up and take action.

http://profile.yahoo.com/X7XFRANLVBHPYI3TG5LHGGOWAE Scruffy

The NDAs also protect the oil companies from class action lawsuits by citizens negatively affected by hazmat pumped into aquifers and subsequently consumed. Any notable increases in diseases around areas using tracking? Is the CDC or state health departments plotting outbreaks in order to catch any unsafe hazmat handling or disposal?

Mjcscruffy

Dear Scruffy,
Now you see the danger of the PA and other state “gag” orders on doctors. No one will be able to collect data on increase in diseases. Have you also noticed that there is nothing coming out of the EPA about conditions in the Gulf of Mexico? I think the oil may still be there suspended as colloidal particles because of the dispersents used by BP. It may have move with ocean currents but I don’t buy that it rendered harmless by exposure to the sun. What about debris from Japan landing and the west coast of US and higher levels that usual of radiation in Blue Fin Tuna. Yet, we are told the tuna is safe to eat and the Gulf has returned to normal. I am seriously afraid that both state and federal governments have sold us 99%ers down the river. And Romney wants to reduce or remove regulations and eliminate the EPA. Are you going to vote Republican? By the way, here in MN the annual rainfall seems to be getting lower. What happens when we run out of clean water?

Here is another: 1% of 1 million gallons, is still 100 gallons of such chemicals.

These same scientists that fudge the numbers and quote ratios that seem harmless, are the same ones recruited by oil companies to deny global warming.

Whale turds, all of them. The lowest of the low at the bottom of the ocean.

Matthew1979

1% of 1 million is 10,000

http://www.facebook.com/people/Bill-B/503828887 Bill B

Although the fracking mixture is less than 1% of the total fluid, it still amounts to millions of pounds of hazardous chemicals. Each well could be ‘fracked’ up to twelve times and use up to 10 million gallons per incident. 1% of 120 million gallons could endanger a lot of people…

http://www.facebook.com/people/Bill-B/503828887 Bill B

Just for the heck of it let’s look at the chemicals found in the flowback water. This is from the state of NY that recently extended it’s moratorium. As already stated, many of these chemicals are deadly in small concentrations.

SGEIS Revised Date of Completion of Revised dSGEIS:
September 7, 2011

New York State Department of Environmental Conservation

Revised Draft

Supplemental Generic Environmental Impact Statement

On The Oil, Gas and Solution Mining

Regulatory Program

Table 5.9 – Parameters present in a limited set of flowback
analytical results103 (Updated July 2011)

CAS Number Parameters Detected in Flowback from PA and WV
Operations

00087-61-6 1,2,3-Trichlorobenzene

00095-63-6 1,2,4-Trimethylbenzene

00108-67-8 1,3,5-Trimethylbenzene

00105-67-9 2,4-Dimethylphenol

00087-65-0 2,6-Dichlorophenol

00078-93-3 2-Butanone / Methyl ethyl ketone

00091-57-6 2-Methylnaphthalene

00095-48-7 2-Methylphenol

109-06-8 2-Picoline (2-methyl pyridine)

00067-63-0 2-Propanol / Isopropyl Alcohol / Isopropanol /
Propan-2-ol

00108-39-4 3-Methylphenol

00106-44-5 4-Methylphenol

00072-55-9 4,4 DDE

00057-97-6 7,12-Dimethylbenz(a)anthracene

00064-19-7 Acetic acid

00067-64-1 Acetone

00098-86-2 Acetophenone

00107-13-1 Acrylonitrile

00309-00-2 Aldrin

07439-90-5 Aluminum

07440-36-0 Antimony

07664-41-7 Aqueous ammonia

12672-29-6 Aroclor 1248

07440-38-2 Arsenic

07440-39-3 Barium

00071-43-2 Benzene

00050-32-8 Benzo(a)pyrene

00205-99-2 Benzo(b)fluoranthene

191-24-2 Benzo(ghi)perylene

00207-08-9 Benzo(k)fluoranthene

00100-51-6 Benzyl alcohol

07440-41-7 Beryllium

00111-44-4 Bis(2-Chloroethyl) ether

00117-81-7 Bis(2-ethylhexyl)phthalate / Di (2-ethylhexyl)
phthalate

07440-42-8 Boron

24959-67-9 Bromide

00075-25-2 Bromoform

07440-43-9 Cadmium

07440-70-2 Calcium

00124-38-9 Carbon Dioxide

00075-15-0 Carbondisulfide

00124-48-1 Chlorodibromomethane

00067-66-3 Chloroform

07440-47-3 Chromium

103 This table contains information compiled from flowback
analyses submitted to the Department by well operators as well as

flowback information from the Marcellus Shale Coalition
Study.

Revised Draft SGEI S 2011, Page 5-103

CAS Number Parameters Detected in Flowback from PA and WV
Operations

07440-48-4 Cobalt

07440-50-8 Copper

00057-12-5 Cyanide

00319-85-7 Cyclohexane (beta BHC)

00058-89-9 Cyclohexane (gamma BHC)

00055-70-3 Dibenz(a,h)anthracene

00075-27-4 Dichlorobromomethane

00084-74-2 Di-n-butyl phthalate

00122-39-4 Diphenylamine

00959-98-8 Endosulfan I

33213-65-9 Endosulfan II

07421-93-4 Endrin aldehyde

00107-21-1 Ethane-1,2-diol / Ethylene Glycol

00100-41-4 Ethyl Benzene

00206-44-0 Fluoranthene

00086-73-7 Fluorene

16984-48-8 Fluoride

00076-44-8 Heptachlor

01024-57-3 Heptachlor epoxide

00193-39-5 Indeno(1,2,3-cd)pyrene

07439-89-6 Iron

00098-82-8 Isopropylbenzene (cumene)

07439-92-1 Lead

07439-93-2 Lithium

07439-95-4 Magnesium

07439-96-5 Manganese

07439-97-6 Mercury

00067-56-1 Methanol

00074-83-9 Methyl Bromide

00074-87-3 Methyl Chloride

07439-98-7 Molybdenum

00091-20-3 Naphthalene

07440-02-0 Nickel

00086-30-6 N-Nitrosodiphenylamine

00085-01-8 Phenanthrene

00108-95-2 Phenol

57723-14-0 Phosphorus

07440-09-7 Potassium

00057-55-6 Propylene glycol

00110-86-1 Pyridine

00094-59-7 Safrole

07782-49-2 Selenium

07440-22-4 Silver

07440-23-5 Sodium

07440-24-6 Strontium

14808-79-8 Sulfate

14265-45-3 Sulfite

00127-18-4 Tetrachloroethylene

07440-28-0 Thallium

Revised Draft SGEI S 2011, Page 5-104

CAS Number Parameters Detected in Flowback from PA and WV
Operations

07440-32-6 Titanium

00108-88-3 Toluene

07440-62-2 Vanadium

07440-66-6 Zinc

2-Picoline

Alkalinity

Alkalinity, Carbonate, as CaCO3

Alpha radiation

Aluminum, Dissolved

Barium Strontium P.S.

Barium, Dissolved

Beta radiation

Bicarbonates

Biochemical Oxygen Demand

Cadmium, Dissolved

Calcium, Dissolved

Cesium 137

Chemical Oxygen Demand

Chloride

Chromium (VI)

Chromium (VI), dissolved

Chromium, (III)

Chromium, Dissolved

Cobalt, dissolved

Coliform

Color

Conductivity

Hardness

Heterotrophic plate count

Iron, Dissolved

Lithium, Dissolved

Magnesium, Dissolved

Manganese, Dissolved

Nickel, Dissolved

Nitrate, as N

Nitrogen, Total as N

Oil and Grease

Petroleum hydrocarbons

pH

Phenols

Potassium, Dissolved

Radium

Radium 226

Radium 228

Salt

Scale Inhibitor

Selenium, Dissolved

Silver, Dissolved

Sodium, Dissolved

Revised Draft SGEI S 2011, Page 5-105

CAS Number Parameters Detected in Flowback from PA and WV
Operations

Strontium, Dissolved

Sulfide

Surfactants

Total Alkalinity

Total Dissolved Solids

Total Kjeldahl Nitrogen

Total Organic Carbon

Total Suspended Solids

Volatile Acids

Xylenes

Zinc, Dissolved

Zirconium

Bcoddington111

There is different stuff for different geological formations, the way I understand it, but this knowledge is invaluable.

Jontod

If your trade secret is injuring people or making them ill or worse yet die, you still have a right to keep it a secret? How is this not insane?
Why are we letting these multi billion dollar companies kill the people that live near the wells?
What is wrong with this? EVERYTHING!
ARE YOU KIDDING ME?

Jontod

1% of a million is not 100 it sadly is 1000 gallons That is scarier isn’t it

Matthew1979

Um.. 1% of a million is 10,000

http://profiles.yahoo.com/u/FDGYHBEWVNGUG763L5X4TON3JQ Nazani14

I’m increasingly dismayed with the conduct of America’s doctors. Thousands of us have served in uniform, putting our lives on the line for less than bountiful pay- yet doctors seem unwilling to do anything to stand up to corporations and religious nuts that threaten the lives and health of their patients.

Deb Sil82

Doctors just want to keep their heads down, do their job, collect their pay & get out. I think most of Americans are like this, too busy trying to put food on the table & no time to worry about why we are so unempowered. To those who have served, I stand in awe of you.

Allen

This is the craziest idea I have heard in a long time. IT IS THE PEOPLE’S BUSINESS TO KNOW WHAT IS BEING PUMPED INTO OUR DRINKING WATER AND THE ENVIRONMENT. This is a matter of free speech and a right to protect ourselves. Corporate rights do not outweigh the rights of human beings. This is another sign that corporations have grossly taken undue power in our country to all our detriment. Come on, those companies have a good idea about what the other companies are doing. That is not an argument, just a smoke screen.

I hope someone challenges this in court and bring about a sensible resolve to such foolishness. If only we had a court not also in corporate pockets.

Orizabafarm

How can it be legal for doctors to be required to withhold information from patients about what may be causing their health problems? Even if the information is “confidential”, every patient should have a legal right to know — from the mouth of a medical professional — what might be affecting their health.

Missy468

CORPORATIONS ARE EVIL. END OF STORY. They do not, never have, & never will care about public safety & health as long as they think they don’t legally have to.

Signandprint Co

As if this secret concoction of chemicals is going to leak to another company that just can’t figure out which chemicals to pump down below. Come on, there are a handful of companies with the capacity to pursue this line of work, and they’ve all got the science, The only secret they’re trying to keep is from the public whose health and land value they’re detsroying.

Rich Garella

Geez … is it possible that a few people in Pennsylvania are just more on the ball than those in the other states? At least on this issue? What a dismissive article — hey, only 1% of it is possibly deadly poison, so ease up already!If the frackers want to keep their chemical formulas secret, I can think of an easy way for them to do it: Don’t inject them into our ground. Keep them out of our water supply. Once they dose someone with it, I say the secret’s out.And I’m wondering what happens when a doctor tells you which chemicals made you sick. You are free, even if your doctor isn’t, to reveal and publicize the information received, right? After all, it’s in in your body.

whatamess777

This is a call to arms. Where is Paul Revere?! The coorporations are coming. This is not a joke our way of life, liberty and property are under attack. Water is life and water is being poisoned. Our soldiers did not fight for our freedom oversees to come back to this. It seems it is us or them because they do not compromise. (remember what Boener said) Where are the militias?

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About StateImpact Pennsylvania

StateImpact Pennsylvania is a collaboration between WITF and WHYY. Reporters Katie Colaneri, Marie Cusick, and Susan Phillips will cover the fiscal and environmental impact of Pennsylvania’s booming energy economy, with a focus on Marcellus Shale drilling. Read their reports on this site, and hear them on public radio stations across Pennsylvania.